Sotomayor: Supreme Court emergency docket appeals by Trump ‘unprecedented’

Justice Sonia Sotomayor in a Thursday speech at the the University of Alabama School of Law said the Trump administration’s increase in emergency appeals is “unprecedented in the court’s history.”

The emergency docket is made up of appeals that seek quick intervention from justices in cases that are still in the lower courts. The administration has filed 34 emergency applications since Trump retook the White House.

In a vast majority of the cases, the Supreme Court has sided with the administration and has often lifted the orders of lower court judges who found the administration’s policies were likely illegal. Cases on the Supreme Court’s emergency docket are decided quickly without oral arguments and often have no explanations. 

Sotomayor said the Supreme Court “we should be letting the lower courts decide these issues first before we the highest court of the land make the final decision.”

“We should make sure that all the facts are fully aired below,” she stated.

Doing so, she said, would ensure that every argument is considered.

“That the intermediate courts have looked at this, and we really shouldn’t take cases and decide them until there is a circuit split, meaning that circuit courts across the country have disagreed on the answer, because then we are sure that every viable and important argument has actually been aired, that all of the important facts have actually been brought out in the various cases,” she said.

Sotomayor added that “since we are the final word, we should do it with some deliberation to make sure we get it right.”

Sotomayor said the court had done that throughout its history, until more recent times. 

The administration has appealed cases related to Trump’s immigration directives and his administration’s firings of members of independent federal agencies. The administration says it is a result of federal district judges overstepping their authority to block Trump’s agenda, while the president’s critics say the judicial decisions against his administration reflect it acting lawlessly. 

The Supreme Court has a conservative majority, with Sotomayor one of three liberal justices.

The justices have disagreed over the emergency docket, with Justices Ketanji Brown Jackson and Brett Kavanaugh sparring last month.

Jackson, who frequently dissents in emergency orders, said Kavanaugh and the other conservatives who sided with Trump repeatedly last year were not serving the court or the country well.

“The administration is making new policy … and then insisting the new policy take effect immediately, before the challenge is decided. This uptick in the court’s willingness to get involved in cases on the emergency docket is a real unfortunate problem,” Jackson said in March.

Sotomayor, who has disagreed with Supreme Court decisions that favor the administration, said conservative justices who form the court’s majority argue that blocking Trump’s policies or laws passed by Congress causes “irreparable harm.”

“If you start with the presumption that there is irreparable harm to one side, then you’re going to have more grants of emergency relief. Because the other side is going to have a much harder time,” she said. “It has changed the paradigm on the court.”

In December, the Supreme Court refused to intervene in a battle concerning immigration judges’ speech restrictions, which marked a rare loss for the Trump administration on the Supreme Court’s emergency docket. 

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